Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. On 10 February 1986 the applicant, Fediol (EEC Seed Crushers' and Oil Processors' Federation), lodged a complaint with the Commission under Article 3(1) of Council Regulation No 2641/84 of 17 September 1984 on the strengthening of the common commercial policy with regard in particular to protection against illicit practices (Official Journal 1984, L 252, p. 1). In the complaint (which was supplemented on 9 May 1986) the Commission is requested to initiate an examination procedure concerning two practices of Argentina which Fediol claims constitute illicit commercial practices within the meaning of Regulation No 2641/84.

General context

2. Illicit commercial practices are defined in Article 2(1) of Regulation No 2641/84 as any international trade practices attributable to third countries which are incompatible with international law or with the generally accepted rules. Under the regulation, persons or associations acting on behalf of a Community industry which considers that it has suffered injury as a result of illicit commercial practices may lodge a complaint with the Commission requesting it to initiate an investigation procedure (Article 3(1) of Regulation No 2641/84).

3. I shall append directly to this brief overview of the opening phase of the procedure a preliminary observation which is relevant to the whole argument, that is to say: the kind of assessment which the Commission is called on to make differs substantially depending on the aspect under investigation. I shall explain myself more precisely: there is to start with a considerable difference between the evaluation of evidence, on the one hand, and assessing the interests of the Community, on the other. In making the latter assessment the Commission plainly has a large latitude in making its judgment or, better, a discretion. Where it is a question of assessing evidence the amount of latitude — certainly no discretion is involved in such a case — is patently more limited.

4. By decision of 22 December 1986 the Commission rejected Fediol's complaint. In the Commission's view the complaint disclosed insufficient evidence of the existence or the illicit nature of the practices objected to by Fediol in order to justify investigation under Regulation No 2641/84. The question of the existence of injury was not entered into. Neither did the Commission dilate upon the necessity to initiate an investigation in the interests of the Community. In other words, the Commission decision related solely to two of the four elements of assessment mentioned above (section 3), namely the existence of the practices complained of and the illegality thereof.

5. Fediol thereupon brought these proceedings in which it asks the Court to declare the Commission's decision void under Article 173 of the EEC Treaty.

No reason to hold the action inadmissible

6. At the outset of my inquiry I should like to stress that the Commission's view that the — in its opinion — limited legal protection devolving upon the applicant under Regulation No 2641/84 constitutes a reason for holding the action inadmissible does not convince me. In order to assess the admissibility of the applicant's action for annulment pending before the Court, reference must be made to the second paragraph of Article 173 of the EEC Treaty. Since it is not in dispute between the parties (and neither could it reasonably be disputed) that the contested decision is of direct and individual concern to the applicant (the contested decision is expressly addressed to Fediol), the admissibility of the application for annulment cannot in my view be subjected to incidental restrictions. To accept incidental restrictions would conflict with the whole corpus of the case-law of the Court, which, on the basis of Article 164 of the EEC Treaty, puts the broadest possible construction on legal protection under the Treaty.

Part I: The question of judicial review in the context of Regulation No 2641/84

A — The case-law of the Court with regard to imports from nonmember countries involving dumping or subsidization

7. The Commission argues that the legal protection to which an applicant is entitled under Regulation No 2641/84 is more limited than the protection afforded under Regulation No 2176/84. The applicant contests this: in its view the legal protection afforded under both regulations is the same (see section 19 of the Report for the Hearing). Regulation No 2176/84 also confers a right to lodge a complaint on producers and trade associations in the Community in order to request the Commission to initiate an investigation into imports from nonmember countries which have allegedly been dumped or subsidized. A comparison of the two regulations from this point of view is therefore appropriate.

8. It is precisely in connection with this right of complaint with regard to dumping or subsidization that the Court had to deal with in its judgment of 4 October 1983 in Case 191/82 Fediol [\9S3] ECR 2913. That judgment is concerned with Regulation No 3017/79, the predecessor of Regulation No 2176/84. In that case, too, Fediol complained that the Commission had wrongly rejected its complaint. The Commission argued that its communication relating to the fact that the Commission was not initiating an investigation procedure — having regard to the extent of its discretion under Regulation No 3017/79 — constituted a mere transmission of information and was therefore not open to challenge under Article 173 of the EEC Treaty.

B — Regulation No 2641/84 on illicit commercial practices compared with the regulations on dumping and subsidization

9. The Commission considers at length the differences between the antidumping regulations (citing on the one hand the old regulation No 3017/79 and on the other hand the new regulation No 2176/84, which has since been replaced by Regulation No 2423/88) and Regulation No 2641/84 on illicit commercial practices. It places its argument on two levels. It first considers, on the level which it terms legal protection, the role played by the interests of the Community in the two types of regulation and also the differences as regards the measures which the Commission can take under the two categories of instrument. Subsequently, it discusses, on the level of the scope of judicial review, the differences between the two categories of regulation as regards the interpretation of the applicable provisions of international law, in particular the rules of the GATT.

The reference to international law

10. The Commission maintains that an incorrect application of international law is subject to review by the Court in connection with Regulation No 2641/84 only if it results in an infringement of provisions of Community law directly and individually conferring rights on individuals. The GATT rules, to which Regulation No 2641/84 refers, are insufficiently precise to cause such rights to arise. The applicant contests those arguments (see for further details the Report for the Hearing, sections 18 and 19 and also sections 31 to 33). The Commission infers from its reasoning that the way in which it interprets the term illicit commercial practices is open to review only in very exceptional cases (see the Report for the Hearing, section 18).

11. In both Regulation No 2176/84 and Regulation No 2641/84 reference to international law plays an important role. Indeed it provides the Community authorities both with the legal basis and the assessment criterion for declaring unlawful certain conduct of nonmember countries (or, in the case of dumping, of undertakings from nonmember countries) and for taking appropriate measures against it.

12. Must it be inferred, however, from this difference with regard to greater or lesser ease of applicability of GATT provisions in Community law, on the one hand in the context of Regulation No 2176/84 and on the other in the context of Regulation No 2641/84, that in the case of Regulation No 2641/84 the Court's power of supervision is nonexistent and the Council and the Commission are free under that regulation to decide themselves, without judicial supervision, on the content of what is to be regarded as illicit commercial practices in the light of international law (that is to say, the GATT in this case)? Of course not.

13. Since provisions of foreign law — which are introduced in a limited way into a particular legal order by a rule of private international law and are declared to be applicable — are amenable to interpretation by the courts of that legal order, how much more must this apply to international provisions, such as the GATT provisions, which are binding on the Community and hence directly form part of and are applied within one's own legal order? As directly applicable provisions they must be applied by the courts as a yardstick for interpretation, irrespective as to whether they can be invoked by individuals. The Court's case-law regards it as self-evident that the courts in the Community may interpret the provisions of the GATT under the supervision of the Court, which itself takes care that the provisions are interpreted by way of preliminary ruling so that they are applied uniformly throughout the Community (judgment of 16 March 1983 in Joined Cases 267 to 269/81 Amministrazione delle finanze dello Stato v SPI and SAMI [1983] ECR 801; see also the judgment of 16 March 1983 in Joined Cases 290 and 291/81 Singer and Geigy v Amministrazione delle /manze dello Stato [1983] ECR 847).

14. In interpreting international and, specifically, GATT provisions, to which, as has been pointed out, Regulation No 2641/84 refers in general terms, the Community authorities should naturally apply the appropriate principles of interpretation, inter alia as set out in Articles 31 to 33 of the 1969 Convention of Vienna on the Law of Treaties. Under those principles a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, taking into account any subsequent agreement between the parties regarding the interpretation of the treaty and/or any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. That means that each party to a treaty must be guided, not merely by its own perceptions and interpretations, but also by those of the other parties to the treaty. A broad interpretation based on usual meaning and context which exceeds the confines of a normal teleological interpretation having regard to the object and purpose of the treaty must be rejected if it appears that it is not based on subsequent agreements or subsequent parallel practices as between the parties. This is because such an interpretation is not consonant with that which was agreed between the parties to the treaty.

The reference to the interests of the Community

15. The role of the requirement of the Community interests is different in Regulation No 2641/84 than in Regulation No 2176/84. The Commission explores that difference at length in view of its general implications for the applicant's legal position.

16. Consequently, the discretion of the Commission (or the Council as the case may be) comes into effect more rapidly in the case of Regulation No 2641/84 than in the case of Regulation No 2176/84 since account may be taken of the interests of the Community at an earlier stage of the procedure. Even if the Commission reaches the decision that an adequate case has been made out for the existence of illicit commercial practices and injury so as to justify initiating the investigation procedure, it may, on the basis of the interests of the Community, decide not to initiate an investigation.

17. At this point in the discussion I would consider Section 301 of the US Trade Act of 1974, as amended by Public Law 93-618 (1975), Public Law 98-573 (1984) and Public Law 100-418 (1988).

18. This brief reference to US law may show where and why only a power of a public authority may be described as a discretionary power of a political nature that is not amenable to judicial review. This appears to be the case where the key concepts on which the exercise of the discretion is made to depend are not capable of legal definition. As far as Section 301 is concerned the USTR is free (subject to the 1988 amendment) to take action against practices which, albeit lawful, are in his view nevertheless unreasonable, unfair or inequitable. According to the examples set out in Section 301(d)(3)(B) the latter expressions have a political content (or, at least, no legal content) and are therefore not amenable to judicial review. The operation thereof is assigned to a preeminently political authority (until 1988, the President, thereafter the USTR, who is answerable to the President and to Congress).

19. Essentially we are confronted here with the well-known problem of judicial review of a public power which is characterized by significant freedom of judgment or even discretion. As Mr Mertens de Wilmars, a former President of the Court, wrote in an article on the way in which the Court proceeds in such a situation, judicial review of such powers is conducted by means of a step-by-step approach; it is first determined whether the authority remained within the area of jurisdiction for which it was given a discretionary power; then it is examined whether the factual and legal circumstances on which the exercise of the discretion depends have been established and must be held to be correct, and finally the actual exercise of the discretion is tested against general principles of law, in particular principles of sound administration such as the principle of equality, the principle of proportionality and the duty to state reasons.

C — Conclusion with regard to Part I of the Opinion

20. The comparison of Regulation No 2641/84 with the (former and present) antidumping and anti-subsidization regulations has produced no arguments to suggest that the attitude adopted by the Court in the previous Fediol case in connection with the latter regulations (see section 8 above) should not likewise apply to Regulation No 2641/84. In neither of the two cases does the Commission have a discretionary power of a political nature which is not amenable to judicial review. Under Regulation No 2641/84 the Commission has a considerable power to interpret international law and, at an early stage in the procedure, an extensive discretionary power to assess the interests of the Community, but judicial review is possible of both powers.

Part II: The exercise of judicial review in practice

21. As was pointed out at the beginning, the applicant complained to the Commission about two practices of Argentina as being illicit commercial practices within the meaning of Regulation No 2641/84. I shall confine myself to a brief indication of the practices complained of and refer for a more exhaustive description to the Report for the Hearing.

A — Were specific GATT provisions infringed?

Alleged infringement of Article III(1 ) of the GATT

22. Article III(1 ) provides inter alia that internal taxes or charges affecting internaltransactions such as sale, purchase, etc. should not be applied to imported or domestic products so as to afford protection to domestic production.

23. In the light of the wording, the purpose and practical implementation of Article 111(1 ) of the GATT the Commission's interpretation is not unwarranted. The fact that particular taxes levied on exportation protect a domestic product is not sufficient to make them into domestic taxes affecting internal transactions (in accordance with the wording of Article 111(1 )). Moreover, the article expressly refers to imported or domestic products and not to exported products. Furthermore the applicant was not able to cite one precedent to show that export duties also fall within the scope of Article III(l). Even the passage quoted from the travaux préparatoires does not deal with export levies.

Alleged infringement of Article XI(1) of the GATT as regards the system of guaranteed margins

24. Article XI(1) is designed to eliminate all quantitative restrictions on both imports and exports of products irrespective as to whether they are made effective through quotas, import or export licences or other measures. However, duties, taxes or other charges are expressly excluded from the scope of this provision.

25. Before the Court, the applicant maintained that certain essential components of the system complained of (inter alia the setting of artificial reference prices) constituted measures having an effect equivalent to quantitative restrictions and hence infringed Article XI(1). Its arguments are therefore based on two propositions. The first is that the Argentine system (which the applicant calls a system of guaranteed margins) is made up of various components and each component, in particular the setting of artificial reference prices, must be tested, as a separate element, against the GATT. The second proposition is that Article XI(1) does not only prohibit quantitative restrictions on exports but also, to use the language of the EEC Treaty, measures having equivalent effect to restrictions on exports. In that regard, it also refers to the Court's case-law on Articles 30 and 34 of the EEC Treaty.

Alleged infringement of Article XI(1) of the GATT as far as the sporadic suspension of export licences is concerned

26. Fediol's complaint also refers to the periodic suspension of export licences for soya beans through the suspension of the (mandatory) registration (formalities) for the exportation of those products; as evidence of that claim reference is made to a press article (in English).

27. That part of the Commission decision is based in the first place, as has already been repeatedly mentioned, on an evaluation of the factual evidence adduced by Fediol. From the particulars set out in the complaint and in the application it must be concluded that the Argentine licensing system for the exportation of soya beans is a so-called automatic licensing system under which the issue of the requisite licences is not subject to any conditions. It is common ground that such licences are permissible under Article XI(1) of the GATT. Accordingly the question arises solely with regard to the alleged suspension of those licences.

Alleged infringement of Article XX of the GATT

28. Article XX contains an enumeration of a number of practices which, despite their being in the nature of restraints of trade, are expressly allowed under the GATT, subject to the (general) condition that they do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. The applicant argues that the Argentine practices complained of constitute an infringement of Article XX, indent (i) (cited in extenso in the Report for the Hearing, section 50). The applicant argues that that article, which authorizes a conditional exception in respect of restrictions on exports of domestic materials, constitutes an autonomous prohibition where the conditions set out therein are not fulfilled. Should the Court not uphold that argument, it maintains that the practices at issue should be prohibited under Article XX, read in conjunction with Articles III, XI(1) and XXIII. The alleged infringement of Article XX was raised by Fediol in a supplementary complaint of 9 May 1986. The Commission rejects the argument that Article XX, which in its view does not contain sufficiently concrete obligations, embodies an autonomous prohibition. It argues that since indent (i) of Article XX sets out an exception to Article XI, it can apply only in the event of an infringement of Article XI (that is to say in the case of quantitative restrictions on exports), which is not involved here (sections 24 to 27, supra).

29. In my view, the Commission's position must be accepted. The wording of Article XX and the practice adopted with regard to it show that it is not regarded as imposing independent obligations or prohibitions. Moreover, to formulate a general rule from the exception to the general rule appears to me to be a questionable method of interpretation. As a result, the Commission was right to decide that Fediol's complaint did not contain sufficient evidence with regard to that point.

B — The alleged infringement of Article XXIII of the GATT on procedure

30. Article XXIII is designed to safeguard the concessions and benefits granted under the GATT. It enables contracting parties to the GATT to take action in certain cases in the event that they should find that one of the concessions or benefits accruing to them under the GATT is being nullified as the result of the failure of another contracting party to carry out its obligations under the Agreement (indent (a)) or of the application by another contracting party of any measure, whether or not it conflicts with the provisions of the GATT (indent (b)), or of the existence of any other situation (indent (c)). The applicant claims that benefits granted to the Community are being nullified either by the application by Argentina of measures conflicting with the GATT or by unlawful measures by Argentina which, however, do not conflict with the GATT. The applicant maintains that the alleged nullification of benefits involved in the first limb of the alternative does not have to be proved, given that there is a prima-facie case that the conflict with the GATT impaired a benefit, and that it consists, in the case of the second limb, of the breach of at least three legitimate expectations.

Alleged infringement of Article XVI in conjunction with Article XX and of the preamble in conjunction with Article XXIII of the GATT

31. In connection with Article XXIII of the GATT, the applicant claims in the first place that (in addition to Articles III, XI and XX, which have already been discussed) the Argentine practices nullify advantages in so far as they infringe Article XVI (Section A), which contains a prohibition of subsidies. The application of Article XVI of the GATT — first alone and then in conjunction with Article XX, which has already been discussed, and rejected (section 28, supra) — is raised by the applicant for the first time in the application with regard to the Argentine practices complained of.

Alleged infringement of legitimate expectations in conjunction with Article XXIII of the GATT

32. The applicant rightly asserts that the procedure set out in Article XXIII of the GATT may also be set in train (but see section 30) where the loss of an advantage accruing to a contracting party to the GATT is caused, not by a failure to fulfil a specific GATT obligation, but by some other measure taken by another contracting party to the GATT (or even, according to indent (c) of Article XXIII(1), by the existence of any other situation). According to the complaint and the application, which provides more detail, such measures cover the infringement of generally accepted rules, such as the principle of good faith or even the principle of nondiscrimination (referred to in the preamble to the GATT) or the prohibition of the evasion of treaty obligations (in particular, Article XVI on the prohibition of subsidies in conjunction with Article XX of the GATT).

33. The Commission's refusal on the basis of those arguments to initiate an investigation procedure appears to me to be justified. Firstly and above all, as already stated in general in connection with Article XXIII, a Commission decision has not yet been taken on the basis of that article in the present stage of the procedure (section 30, supra). Secondly, breach of legitimate expectations cannot, in my view, be described as the impairment of a benefit within the meaning of Article XXIII of the GATT, certainly not where such general expectations are involved as those referred to by the applicant. In connection with the most specific of the expectations (the consolidation at zero of the customs duty on soya cake) the comments made by the Commission raise serious doubts as to the legitimacy of that expectation. Lastly, it is extremely doubtful whether there is in this case an infringement of the principle of good faith. As already mentioned (section 14, supra) that principle refers with regard to the interpretation of treaty provisions to the need when exercising measures against a GATT contracting State not to proceed solely on the basis of one's own opinion but also to take account of those of the other contracting parties.

Alleged infringement of Article XXXVI setting out the general objectives of the GATT

34. In the supplement to its complaint lodged on 9 May 1986 (and hence before the contested Commission decision) Fediol argued that Article XXXVI must also be applied. In that article the contracting parties set out a number of general objectives in the field of international trade. The contested Commission decision does not go into that part of the complaint. In the course of the procedure before the Court the applicant has submitted no formal conclusion with respect to this point.

C — Conclusion with regard to Part II of the Opinion

35. It does not appear from the foregoing that the Commission exercised its power wrongly in the contested decision.

Costs

36. The applicant asks the Court to order the Commission to pay the costs even if the latter is successful. It relies in this regard on the second subparagraph of Article 69(3) of the Rules of Procedure under which the Court may order even a successful party to pay costs where the Court considers that that party unreasonably caused the opposite party to incur them. I consider that there is no reason to go into that question since the substantive arguments invoked by the applicant are, according to the foregoing analysis, untenable and the Commission in rejecting the complaint did not cause the applicant to incur any unreasonable costs by giving an unnecessarily strict interpretation to Regulation No 2641/84.

General conclusion

37. In the light of the foregoing appraisal I take the view that:

1 Original language: Dutch

2 Member Stales also ask the Commission to inmate such an investigation procedure (Article 4(1) of Regulation No 2641/84) In addition, a second procedural avenue is also open to them (see Anide 1(b). as compared with Article 1(a). of Regulation No 2641/84)

3 This difference is reflected in the wording of the regulation: Article 3(5) states, with regard to the assessment of evidence, Where it becomes apparent...; Article 6(1) provides, as regards the twofold assessment of the evidence and the interests of the Community, ;where... it is apparent to the Commission (Dutch version: wanneer de Commissie... van mening is dat = where the Commission is of the opinion that... ) (emphasis added).

4 Furthermore, in its defence the Commission expresses a reservation with regard to the admissibility of the applicant's application for reasons connected with Fediol's action for annulment in Case 187/85 which was then still pending before the Court and in which, as has already been mentioned (section I), the same practices were at issue but seen from another viewpoint (see the Repon for the Hearing, section 20). In the mean lime the Court has delivered its judgment and the Commission has dropped its reservation (see also the following footnote). In its defence, the Commission also cast doubt on Fediol's interest in bringing proceedings on the basis of rumours that Argentina had since abandoned the practices complained of. Those rumours turn out to have been wrong, as the Commission admitted at the hearing.

5 Council Régulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized exports from countries not members of the European Economic Community. Dumping and subsidization are also covered by the definition of illicit commercial practices but under Community law may be challenged only under Regulation No 2176/84. This is because Article 13 of Regulation No 2641/84 provides that Regulation No 2641/84 is not to apply in cases covered by other existing rules in the common commercial policy field. In its judgment of 14 July 1988 in Case 187/85 Fediol [1988] ECR 4155, the Court decided, as has been pointed out in section 1, that the Argentine practices challenged by Fediol could not be described as subsidization within the meaning of Regulation No 2176/84. In this case It can therefore be considered whether the practices at issue are to be categorized as illicit commercial practices within the meaning of Regulation No 2641/84.

6 OJ 1988, L 209, p. 1

7 Anicie 16(1) and (6) of the Agreement on the Implementation of Article VI of the GATT (revised Anti-Dumping Code) and Article 1 and Article 19(1) and (5) of the Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the GATT (relating to subsidies and countervailing duties) put the signatories to the agreements under a duty to adjust their domestic legislative and administrative procedures to suit the provisions of the agreements. See the preamble to Regulation No 2176/84 (OJ 1984, L 201, p. 1).

8 For more details of the background see, inter alia, M. Bronckers, Selective safeguard measures in multilateral trade relations. The Hague, 1985, pp. 211 to 219.

9 Within the compass of this case I do noi need to consider the question whether GATT provisions have direct effect (in the sense of their being capable of being invoked by individuals) since, as is argued later, the Court's power of interpretation is not dependent on the intended effect (nor on tne direct applicability) in the domestic legal order of the provision to be interpreted. For the sake of a proper understanding of my train of thought I shall nevertheless clarify my conception in this regara. I shall start from the difference between (direct and indirect) applicability, on the one hand, and direct effect in the sense referred to above, on the other, of foreign (see later) or international provisions. A provision is directly applicable where it forms a part of the domestic legal order directly without the need for transposition (an example is those GATT provisions which, according to the Court, bind the Community and form an integral part of the Community legal order); a provision is indirectly applicable where it must be declared to be applicable by means of a provision of one's own legal order (an example is a provision of foreign law which is declared to be applicable in a limited way by a rule of private international law, in particular to govern an element of a particular legal relationship: see also section 12). This must be differentiated from direct effect, which means that individuals can derive from a provision with such effect subjective rights. Direct effect is dependent primarily on the type and purpose of the relevant provision itself (hence, according to the Court, on the basis of their spirit, general scheme and terms, GATT provisions do not have direct effect, that is to say the GATT does not have provisions which can be invoked by individuals). Such a provision which does not have direct effect per se may, in my view, none the less be transformed within a particular legal order, by a rule of that legal order, into a rule having direct effect, that is say a rule which can be invoked by individuals (for instance, GATT provisions which are taken over in a Community regulation or to which a Community regulation refers and from which individuals may therefore to a greater or lesser extent derive rights pursuant to and within the limits of that regulation; this is also true of a provision of foreign law which, through a rule of private international law, is occasionally declared to be applicable within one's own legal system and made capable of being directly invoked in that context). I would add that, Ín my view, any international or foreign provision which is directly applicable or is made applicable by transposition obtains ipso facto within that legal order a certain direct effect in the sense that it can be invoked by individuals in any event as an interpretative criterion but also, it appears to me, as a criteria for assessing the validity of inferior norms or measures.

10 For a brief discussion of Anicie 31 et seq. of the Treaty of Vienna, see in particular D. Carreau, Droit international, Paris, 1986, Nos 363 to 379, especially Nos 363 and 372 and 373.

11 This applies in particular to the GATT in view of the generally accepted tradition in connection with that agreement of the settlement of disputes by means of consensus between the parties. (See in that regard Article 10 of Regulation No 2641/84, considered in section 15, infra.)

12 See E. U. Petersmann, Application of GATT by the Court of Justice of the European Communities, CMLR, 1983, pp. 397 to 437, especially pp. 403 and 404 and 417 to 420; M. Maresceau, The GATT in the case-law of the European Communities, in The European Community and GATT, M. Hilf, F. Jacobs and E. U. Petersmann, eds, 1986, pp. 107 to 126, especially pp. 113 and 117; C. D. Ehlermann, Application of GATT rules in the European Community, in The European Community and GATT, op. cit., pp. 127 to 140, especially p. 136.

13 It follows that there is yet another difference between the two regulations, namely with regard to the measures which are ultimately taken if a decision to that effect is taken at the end of tne investigation procedure. Under Regulation No 2641/84 regard is had once again to the necessity for action in the interests of the Community (Article 10(1)) and the compatibility of any measure taken with existing international obligations and procedures (Article 10(2) and (3)). Regulation No 2176/84 is a good deal more resolute: where dumping or subsidization has caused injury and the interests of the Community call for Community intervention a definitive antidumping duty or countervailing duty shall be imposed by the Council ... (Article 12(1)).

14 The Commission seems to see the complainant's right under Regulation No 2641/84 as a species of diplomatic protection. In international law (which is where this legal concept originates) it is generally assumed that an authority or a State which is asked to grant diplomatic protection is not under a duty to agree to that request. The right of a legal subject applying to the authority for diplomatic protection goes no further than the right to ask the authority for assistance. The authority is entitled to weigh the relative importance of the particular claim against the political implications connected with possible action on its part.

15 Before the amendment of the Act in 1988 the authority to act under Section 301 was vested in the President. In 1988 the authority was transferred from the President to the USTR. In 1962 the office of the USTR was created by Congress in order to take over the role of the State Department in respect of negotiations concerning trade matters because it was feared that the State Department might sacrifice trade interests to the political interests of the United States. The USTR is appointed by the President but the appointment must be ratified by Congress. He is answerable both to Congress and to the President.

16 Unreasonable practices also include for example the denial to workers of their right of association or of collective bargaining or the imposition of particular working conditions (see indent B(iii) of Section 301(d)(3) of the Act).

17 See inter alia Señale Report No 1298 with the original text of the Trade Act of 1974, published in US Code Cong. Se Adm. News 7186 (1974). See also P. Hansen, Denning unreasonableness in international trade: Section 301 of the Trade Act of 1974, Yale Law Journal, 1987, pp. 1122 to 1146, note 36 on p. 1129; Hilf, International trade disputes and the individual: Private party involvement in national and international procedures involving unfair foreign trade practices, Außenwirtschaft, 1986, p. 441 el seq., at p. 458.

18 The 1984 statute inserted a super 301 Section which was intended to put the USTR under a duly to initiate an investigation with regard to priority practices and priority foreign countries (those expressions refer to existing barriers whose diminution would particularly benefit US exporters) which are identified in the report of the annual National Trade Estimate. In addition, the statute lays down a number of accelerated procedures for foreign countries that deny adequate and effective protection of intellectual property rights or fair and equitable market access to US persons who rely upon intellectual property protection.

19 I would express no opinion as to whether or not such national legislation is compatible with the free-trade principles which underlie the GATT and authorize the taking of unilateral action against the practices of a party to the GATT only where those practices conflict with international law. The European Commission has been critical of Section 301 for those reasons, since it sees in the condemnation of behaviour which is lawful yet unreasonable a departure from the spirit of the GATT. See the references in R. Denton, The new commercial policy instrument and Akzo v Dupont, European Law Review, 1988, p. 3, at p. 4.

20 That limitation to illicit commercial practices and the resultant divergence from Section 301 of the US Trade Act was the result of a deliberate choice (see the references in Bronckers, op. cit., pp. 213 to 19, and in Denton, article cited above, pp. 5 and 6).

21 The case-law of the Court of Justice in relation to the review of the legality of economic policy in mixedeconomy systems, Legal issues of European integration, 1982/1, p. 5 et seq.

22 In considering the GATT provisions relied on I have consulted the following sources: the text of the GATT, the notes on the interpretation of the agreement, the panel reportsdrawn up by the GATT contracting parties and, as a supplementary source, academic writings.

23 The expression used by the French version of the GATT, which along with the English version constitute the authentic versions of the Agreement, is taxes intérieures.

24 It refers to the Court's judgment of 29 June 1978 in Case 140/77 Statens Kontrol Larsen [1978] ECR 1543.

25 According to Anicie 32 of the Vienna Convention (section 13 above) preparatory work is merely a supplementary and limited means of interpretation.

26 Judgment of 26 October 1982 in Case 104/81 Hauptzollami Mainz v Kupferberg [1982] ECR 3641, paragraph 30, which refers to the judgment of 9 February 1982 in Case 270/80 Polydorv Harlequin Record Shops [1982] ECR 329, paragraph 18.

27 For those (wo arguments, sec section 23 and footnotes 22 and 23

28 The applicant maintains that those statistics do not contradict its view In its opinion, the increase in Argentine exports of soya beans to the Community reflects the substantial rise in soya bean production (since 1980) coupled with a slower increase in the processing capacity of the Argentine industry The statistics therefore reflect a temporary situation which will disappear once production capacity reaches an adequate level

29 Sec inter alia the Panel Report on the EEC programme of minimum import prices, licences and surety deposits, adopted on 18 October 1978. Sec the Analytical index (loose-leafed GATT edition, Geneva) under Article XI, point 4.

30 The applicant has not cited any precedent or academic writings in support of its argument 1 would refer, inasmuch as it is necessary, to the notes, decisions and declarations connected with Article XX of the GATT which arc set out in the Analytical Index, cued earlier Nowhere therein is there any support to be found for the applicant's argument

31 See on this subject the Analytical Index. Article XXIII, point I 11(a)

32 I shall not dwell here on the thorny question to which extent such a Commission decision, with involvement (in fact a right of veto) of the Council, is subject to judicial review. What is actually involved is an acte de gouvernement in the full sense of the expression, in the international sphere in relation (not to the interpretation but) to the implementation of machinery set up by an international treaty.

33 The applicant considers that the Court should examine all grounds which were raised before the Commission's decision became definitive Thai reasoning appears to be wrong in the context of these proceedings The case turns on whether the Commission correctly judged that, at the time when it took us contested decision, there was not sufficient evidence to justify initiating an investigation (Article 3 of Regulation No 2641/84) It goes without saying that evidence that was not under assessment at that time could not be taken into consideration by the Commission (whilst an infringement of Article XVI manifestly emerged from the evidence set out in the complaint, for a different view, sec the following note)

34 Admittedly the applicant argues that Article XVI of the GATT does not relate only to subsidies but also to any form of income or price support (see Article XVI(1)) However, it is clear from the wording of Article XVI that a form of subsidization is meant thereby